104 Va. 881 | Va. | 1906
delivered the opinion of the court.
At the June term, 1905, of the Circuit Court of Henrico county, the plaintiff in error, Austin Johnson, was indicted, tried and convicted of the crime of rape, alleged to have been committed by him upon the person of a female child of the age of ten years; and his punishment was fixed by the jury at death.
The prisoner moved the court to set aside the verdict and grant him a new trial on two grounds: (1) Because the ver-diet was contrary to the law and the evidence; and, (2) for after-discovered evidence. But the court overruled the motion, and pronounced judgment upon the verdict, to which judgment a writ of error was awarded by this court.
The evidence in the case (not the facts) having been certified in accordance with the injunction of section 3484, Va. Code, 1904, the rule of decision in this court in considering the evidence must be as on a demurrer to the evidence. The effect of that rule is too familiar to demand repetition, and con-formably to its requirement we feel constrained to sustain the action of the trial court in overruling the motion of the prisoner to set aside the verdict of the jury on the ground that it was contrary to the law and the evidence.
But, in that connection, it is proper to observe, that while in obedience to the explicit mandate of the statute we have been-obliged to uphold the ruling of the court upon the first assign-
In considering the last assignment, it will not be necessary to examine all the evidence in the case, but only such parts of it as tend to make clear our reasons for the conclusion which we have reached.
It appears that the crime was committed about dusk on May 6, 1905; and upon a general description, given by the child, of her assailant, that he was a dark man with thick lips, and wore a black slouch hat, a dark blue shirt with black pearl buttons, a dark coat, and shoes with large holes in the tips, the accused was arrested that night and taken into the presence of the child for identification. She was twice asked if he was the guilty party, and.each time indicated by a shake of her head that he was not. Thereupon, the officers, having learned that a small negro girl, Cornelia Horsley, was in company with the child at the time she was enticed into an alley-way by her assailant, (upon the pretext that his sister wanted to buy some of the cologne that she was peddling) took the prisoner to her home, and on being interrogated as to whether he was the man who lured,the child off, she replied: “No, that is not the man, that is Austin Johnson. The man who met us this evening was a tall, black man, who had on a black slouch hat and gray coat and blue shirt, dark pants and tan shoes.” It was also in evidence that Austin Johnson was well known to Cornelia Hors-ley, having formerly been in her father’s employment — a circumstance which adds to the probative value of her testimony
After bis conviction, tbe prisoner made affidavit that since tbe trial be bad discovered material evidence affecting tbe merits of tbe case, which be could not have obtained by due diligence before or during tbe trial; and also filed affidavits of a number of persons setting forth tbe after-discovered evidence upon which be relied. We shall only notice tbe affidavits of two of these witnesses, J. T. Herrin and W. J. Heady.
The affidavit of Mr. Herrin is to tbe effect that be is tbe managing overseer of tbe “West End Brick Yard,” located near tbe “New Beservoir;” that a private detective came to bis residence on Sunday afternoon, May 1, 1905, and requested af-fiant to accompany him to a shanty some thirty or forty yards distant, where be desired him to see a negro, who was there asleep, and ascertain if be belonged in tbe yard; that be (tbe detective) thought be was tbe same negro who was suspected of having perpetrated a rape upon a little white girl tbe day before ; that affiant found tbe accused lying bn a bunk asleep, and awoke him and asked what be was doing there. Tbe affidavit proceeds: “I will state most positively that there was no fire of any kind in tbe shanty bouse, and that there were no signs of any fire having been there; and that nothing was said by Jobnson (tbe detective who testified about tbe accused burning tbe bundle of underwear), or any one else about there having been any fire there. I remember distinctly that tbe prisoner accompanied tbe officers very willingly, making tbe remark, Wes, I will go anywhere with you,’ addressing tbe officers. . . :
Affiant W. J. Heady, the proprietor of the brick-yard, deposed, that he had known J. T. Herrin for len years; that he had been in his employment as managing overseer of his brickyard and plant for fifteen months; and that he is a man of “the highest integrity of character.”
The rule governing the granting of new trials for after-discovered evidence is well settled by the authorities in this jurisdiction, and is succinctly stated in the case of Nicholas v. Commonwealth, 91 Va. 741, at page 753, 21 S. E. 364, at p. 368, as follows: ,
“1st. The evidence must have been discovered since the trial. 2nd. It must have been evidence that could not have been discovered before the trial by the exercise of reasonable diligence. 3rd. It must be material in its object, and such as ought, on another trial, to produce an opposite result on the merits. 4th. It must not be merely cumulative, corroborative, or collateral.” 4 Min. Inst. Pt. 1, 758, 759; Wynne v. Newman’s Admr., 75 Va. 817; Whitehurst v. Comth. 79 Va. 556. See to the same effect the cases collected in a note to St. John’s ex’ors v. Alderson, 32 Gratt. (Va. Rep. Ann.) 140.
The injurious impression that must have been wrought upon the minds of the jury, in their effort to reconcile the conflicting evidence in respect to the identification of the prisoner as the guilty party, by the uncontradicted testimony of the detective, that the day after the crime was committed the accused was discovered in the act of burning his underclothing, the condition of wdiich it was believed would incriminate him, can hardly be overstated. And, conversely, the testimony of an intelligent, disinterested witness of high character, which, if true, indicates a purpose on the part of the detective to compass the conviction of the accused upon fabricated evidence, would reasonably have exerted a favorable influence with the jury in his behalf.
Inexpressibly horrible as was the crime perpetrated upon this unfortunate child, it would be still more baleful to endeavor to expiate it either by taking the life of an innocent man, or of one whose guilt had not been established with that degree of certainty which the law in its wisdom has ordained.
For these reasons, the verdict of the jury must be set aside, the judgment of the Circuit Court reversed, and the case remanded for a new trial.
'Reversed.